Stackhouse v. Maricopa Cty Sher Of, et al Doc.

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6 IN THE UNITED STATES DISTRICT COURT
7 FOR THE DISTRICT OF ARIZONA
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9 Norman Lee Stackhouse, ) No. CV 05-0028-PHX-DGC(MEA)
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10 Plaintiff, ) ORDER
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11 vs. )
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Maricopa County, et al., )
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Defendants. )
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16 Plaintiff Norman Lee Stackhouse, confined in the Arizona State Prison Complex-
17 Lewis, has filed a Motion for Relief from Judgment and Motion for Leave to File an
18 Amended Complaint regarding a pro se civil rights Complaint filed pursuant to 42 U.S.C. §
19 1983. The Court will grant the Motions.
20 The Court will vacate its Order of August 15, 2005 only to the extent that it dismisses
21 the Complaint without leave to amend and dismisses the action. The Court will vacate the
22 Judgment entered August 15, 2005 dismissing the Complaint and Action and direct the Clerk
23 to reopen the case. The Court will direct the Clerk to file the Amended Complaint.
24 The Court will order Defendants Maricopa County and Joseph Arpaio to answer the
25 Amended Complaint. The Court will not dismiss Defendant John Doe, but will not order
26 service on Defendant Doe at this time.
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 1 I. Procedural Background
2 On January 4, 2005 Plaintiff filed a pro se civil rights Complaint pursuant to 42
3 U.S.C. § 1983 alleging that Defendants Maricopa County Sheriff’s Office and Joseph Arpaio
4 had lost Plaintiff’s property while he was in custody in the Maricopa County Jail. On
5 August 15, 2005, this Court granted Plaintiff’s Motion to Proceed In Forma Pauperis and
6 dismissed the Complaint for failure to state a claim. Doc. # 6. The Complaint did not state
7 a claim because it named improper Defendants and because negligent conduct of prison
8 officials that causes the loss of property does not constitute a violation of the Due Process
9 Clause. Id. The dismissal was without leave to amend because it appeared that amendment
10 could not cure the deficiencies in the Complaint. Id. On August 15, 2005, a Judgment was
11 entered dismissing the Complaint and the action. Doc. # 8.
12 On December 12, 2005, Plaintiff filed a Motion for Relief from Judgment pursuant
13 to Rule 60 (b) (6) of the Federal Rules of Civil Procedure and a Motion for Leave to File an
14 Amended Complaint. Doc. # 10. In his Motion for Relief From Judgment, Plaintiff asserts
15 that the heart of his claim is that while he was in Defendants’ custody, Defendants “took
16 from him, or caused to be taken from him” his property. In his Motion for Relief, Plaintiff
17 alleges that he does not know whether his property was lost or stolen. Plaintiff claims that
18 he has no post-deprivation remedy available to him because (1) two grievances that he filed
19 in jail were “stonewalled,” and (2) he is precluded by Arizona law from bringing a tort claim
20 against Defendants. Specifically, he refers to A.R.S. § 31-201.01(L).
21 The allegations in the proposed Amended Complaint, lodged as Doc. # 9, state that
22 the property loss was pursuant to a custom, practice, or usage whereby Defendant Arpaio
23 permitted his employees to plunder the personal belongings of prisoners and pre-trial
24 detainees and that Defendant encouraged his supervisory personnel to protect their
25 subordinates by concealing the identities of those who stole, destroyed, or lost property.
26 II. Reconsideration and Statutory Screening of Prisoner Complaints
27 A motion for reconsideration must demonstrate some valid reason why the Court
28 should reconsider its prior decision and must set forth facts or law of a strongly convincing

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 1 nature to induce the Court to reverse its prior decision. Courts have identified three major
2 grounds justifying reconsideration: (1) an intervening change in controlling law, (2) the
3 availability of new evidence, and (3) the need to correct clear error or prevent manifest
4 injustice. School Dist. No. 1J Multnomah County, Or. v. AcandS, Inc., 139 F.R.D. 167
5 (D.Or. 1991).
6 The Court is required to screen complaints brought by prisoners seeking relief against
7 a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
8 § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised
9 claims that are legally frivolous or malicious, that fail to state a claim upon which relief may
10 be granted, or that seek monetary relief from a defendant who is immune from such relief.
11 28 U.S.C. § 1915A(b)(1),(2). “[P]ro se pleadings are liberally construed, particularly where
12 civil rights claims are involved.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th
13 Cir. 1990).
14 Here, Plaintiff has alleged new facts in the proposed Amended Complaint. After
15 reviewing the pleadings and record and screening the proposed Amended Complaint, the
16 Court determines that Plaintiff has stated a claim under §1983 and that he should be
17 permitted an opportunity to proceed.
18 III. Amended Complaint
19 Plaintiff names the following Defendants: (1) Maricopa County, (2) Joseph Arpaio,
20 Sheriff, and (3) John Doe. Plaintiff alleges a single ground for relief: the loss of his
21 property when Defendant John Doe removed all of Plaintiff’s belongings from his cell,
22 Defendants did not return the belongings, and Defendants did not respond to grievances.
23 Plaintiff alleges that this conduct was pursuant to a custom, practice, or usage whereby
24 Defendant Arpaio permitted his employees to plunder the personal belongings of prisoners
25 and pre-trial detainees and that he encouraged his supervisory personnel to protect their
26 subordinates by concealing the identities of those who stole, destroyed, or lost property.
27 For relief, Plaintiff requests damages and attorneys fees.
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 1 An allegation of an intentional deprivation of property by government officials
2 pursuant to custom and tradition sufficiently alleges a claim that employees acted
3 intentionally pursuant to established government procedures. See Tripati v. State, 199 Ariz.
4 222, 226-27, 16 P.3d 783, 787-88 (App.1Div. 2001). Post-deprivation remedies do not
5 satisfy due process if the deprivation is caused by established government procedures. See
6 Logan v. Zimmerman Brush Co., 455 U.S. 422, 435-36 (1982). Thus, the allegations in the
7 Amended Complaint state a claim against Defendants.
8 The Court will not order service at this time on Defendant John Doe because, as a
9 practical matter, it is in most instances impossible for the United States Marshal to serve a
10 summons and complaint on an unidentified defendant. If Plaintiff is able to determine the
11 identity of this Defendant, he should amend his Complaint to name him. Pursuant to Rule 15
12 of the Federal Rules of Civil Procedure, a party may amend the party’s pleading once as a
13 matter of course at any time before a responsive pleading is served. Otherwise a party may
14 amend the party’s pleading only by leave of court or by written consent of the adverse party.
15 IV. Warnings
16 A. Release
17 Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release.
18 Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay
19 the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result
20 in dismissal.
21 B. Address Changes
22 Plaintiff must file and serve a notice of a change of address 10 days before the move
23 is effective, if practicable. See LRCiv 83.3(d). Plaintiff must not include a motion for other
24 relief with a notice of change of address. Failure to comply may result in dismissal.
25 C. Copies
26 Plaintiff must serve Defendants, or counsel if an appearance has been entered, a copy
27 of every document that he files. Fed. R. Civ. P. 5(a). Each filing must be accompanied by
28 a certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Plaintiff

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 1 must submit an additional copy of every filing for use by the Court. LRCiv 5.4. The Court
2 may strike any filing that fails to comply with these requirements.
3 D. Possible Dismissal
4 Plaintiff is warned that failure to timely comply with every provision of this Order,
5 including these warnings, may result in dismissal of this action without further notice. See
6 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an
7 action for failure to comply with any order of the Court).
8 IT IS ORDERED:
9 (1) Plaintiff’s Motion for Relief from Judgment and Motion for Leave to File an
10 Amended Complaint (Doc. #10) are granted.
11 (2) The Court’s Order of August 15, 2005 (Doc. # 6) is vacated only to the extent that
12 it dismisses the Complaint without leave to amend and dismisses the action.
13 (3) The Judgment entered August 15, 2005 dismissing the Complaint and action (Doc.
14 # 8) is vacated and the Clerk of Court must reopen the case.
15 (4) The Clerk of Court must file the Amended Complaint (now lodged as Doc. # 9).
16 (5) Defendants Maricopa County and Joseph Arpaio must answer the Amended
17 Complaint.
18 (6) The Clerk of Court must send Plaintiff a service packet including the Amended
19 Complaint (now lodged as Doc.# 9), this Order, and both summons and request for waiver
20 forms for Defendants Maricopa County and Arpaio.
21 (7) Plaintiff must complete and return the service packet to the Clerk of Court within
22 20 days of the date of filing of this Order. The United States Marshal will not provide
23 service of process if Plaintiff fails to comply with this Order.
24 (8) If Plaintiff does not either obtain a waiver of service of the summons or complete
25 service of the Summons and Amended Complaint on a Defendant within 120 days of the
26 filing of the Complaint or within 60 days of the filing of this Order, whichever is later, the
27 action may be dismissed as to each Defendant not served pursuant to Rule 4(m) of the
28 Federal Rules of Civil Procedure and Local Rule of Civil Procedure 16.2(b)(2)(B)(i).

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 1 (9) The United States Marshal must retain the Summons, a copy of the Amended
2 Complaint (now lodged as Doc. # 9), and a copy of this Order for future use.
3 (10) The United States Marshal must notify Defendants Maricopa County and Arpaio
4 of the commencement of this action and request waiver of service of the summons pursuant
5 to Rule 4(d) of the Federal Rules of Civil Procedure and Rule 4(j)(2) of the Federal Rules of
6 Civil Procedure and Rule 4.1(c) of the Arizona Rules of Civil Procedure. The notice to
7 Defendants must include a copy of this Order. The Marshal must immediately file requests
8 for waivers that were returned as undeliverable and waivers of service of the summons. If a
9 waiver of service of summons is not returned by a Defendant within 30 days from the date
10 the request for waiver was sent by the Marshal, the Marshal must:
11 (a) Personally serve copies of the Summons, Amended Complaint, and this Order
12 upon Defendant pursuant to Rule 4(e)(2) and Rule 4(j)(2) of the Federal Rules of
13 Civil Procedure;
14 (b) Within 10 days after personal service is effected, file the return of service for
15 Defendant, along with evidence of the attempt to secure a waiver of service of the
16 summons and of the costs subsequently incurred in effecting service upon Defendant.
17 The costs of service must be enumerated on the return of service form (USM-285) and
18 must include the costs incurred by the Marshal for photocopying additional copies of
19 the Summons, Amended Complaint, or this Order and for preparing new process
20 receipt and return forms (USM-285), if required. Costs of service will be taxed against
21 the personally served Defendant pursuant to Rule 4(d)(2) and (5) of the Federal Rules
22 of Civil Procedure, unless otherwise ordered by the Court.
23 (11) A Defendant who agrees to waive service of the Summons and Amended
24 Complaint must return the signed waiver forms to the United States Marshal, not the
25 Plaintiff.
26 (12) Defendants must answer the Amended Complaint or otherwise respond by
27 appropriate motion within the time provided by the applicable provisions of Rule 12(a) of
28 the Federal Rules of Civil Procedure.

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 1 (13) Any answer or responsive pleading must state the specific Defendant by name
2 on whose behalf it is filed. The Court may strike any answer, responsive pleading, or other
3 motion or paper that does not identify the specific Defendant by name on whose behalf it is
4 filed.
5 (14) This matter is referred to Magistrate Mark E. Aspey pursuant to Rules 72.1 and
6 72.2 of the Local Rules of Civil Procedure for further proceedings.
7 DATED this 19th day of July, 2006.
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